Shepherd v. U.S. Fidelity & Guaranty Co.

• Decision Date: 08 December 1958
• Docket Number: No. 17477,17477
• Citation: 233 S.C. 536,106 S.E.2d 381
• Court: South Carolina Supreme Court
• Parties: Philip L. SHEPHERD, Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, M. H. Hall and Mrs. M. H. Hall, Appellants.

Page 381

106 S.E.2d 381

233 S.C. 536

Philip L. SHEPHERD, Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, M H. Hall and Mrs. M. H. Hall, Appellants.

No. 17477.

Supreme Court of South Carolina.

Dec. 8, 1958.

Roberts, Jennings, Thomas & Lumpkin, Columbia, for appellants.

John Gregg McMaster, Columbia, for respondent.

STUKES, Chief Justice.

Respondent recovered verdict and judgment for damages for personal injuries incurred when his automobile, which he was driving, was in collision with appellants' runaway automobile on the road or street in front of the personal appellants' home. The location is a residential suburb of Columbia and the 'street' is a paved farm-to-market, unlighted road, which is known as Furman Avenue.

The appellant Hall is an employee of the corporate defendant which owned the offending automobile but permitted his and Mrs. Hall's personal use of it. She had taken her daughter to dancing school, stopped to shop en route home and parked the automobile at the head of the driveway, adjacent to the side of the residence, at about nine o'clock on the night of the accident. She testified that she knew that she set the emergency brake and shifted the gears to 'park' because that was her fixed habit; she would not say that she had an independent recollection of having taken these precautions on this occasion. Her husband was already asleep in bed and as she was making preparations therefor at about ten o'clock she heard the collision and aroused her husband. A neighbor also went out from his home. Upon respondent's insistence, an officer was called. He testified, as did other witnesses, that the driveway declined sharply into the street; and further that respondent and Hall agreed at the scene that they could come to terms, so the officer made no charge.

Upon examination of the runaway car, which was without lights, it was found by the witnesses that the automatic gear shift was in 'neutral', and the brakes (which were in good condition) were not applied; the left front window was down, whereas Mrs. Hall testified that when she parked the vehicle she left the window up, as was her custom. It was established in testimony that there was a decline from the parking place to the street of from seven to ten feet although the immediate parking area was almost level.

The appeal is from the denial of the usual defensive motions and from the judgment entered upon the verdict. The first question submitted is that the evidence was insufficient to submit to the jury the issue of appellants' negligence because of the lack of evidence as to the cause of the runaway, in view of Mrs. Hall's testimony that she had properly adjusted the gears and the brakes when she parked the car at the top of the incline. However, the contrary condition of the car immediately after the collision, which was undisputed, is strong circumstantial evidence that she was mistaken in her testimony and that her negligent act was proximate cause of the injuries. On the other hand, it would be plain conjecture to suppose some intervening cause, such as the act of a prankster, of which there was no evidence.

The doctrine of res ipsa loquitur is not recognized in the decisions of this court but the efficacy of circumstantial evidence to prove negligence is. Eickhoff v. Beard-Laney, Inc., 199 S.C. 500, 20 S.E.2d 153, 141 A.L.R. 1010, annotation. In the absence of exact precedent for this case in our decisions the declarations of the law elsewhere, to which we now advert, are persuasive.

The following quotation is from 2A Blashfield, Cyclopedia of Automobile Law and Practice, p. 778 sec. 1206:

'The unexpected presence upon a public highway of a 'runaway' automobile, without a driver or occupant, has been held to raise a prima facie presumption of negligence on the part of the owner, being of itself sufficient to take the question of negligence to the jury, and, assuming that no one has touched it after it was left by the operator, is sufficient to warrant the jury in concluding that he was negligent in not properly securing the machine in position. The fact that the car remained stationary for some time before starting into motion does not relieve the driver from this presumption of negligence.' (We prefer the term 'inference' (of negligence) which we think is more accurate in this context than is 'presumption.' Many decisions refer to 'presumption or inference'.)

In Vaughan v. Meier, Mo.1922, 246 S.W. 279, an automobile was left on street of 8% grade which it rolled down from ten minutes to three-quarters of an hour afterward and after a heavy fire truck passed it. Held: jury issue whether negligence of operator was the proximate cause of injury to plaintiff, despite attempt of bystander to stop car which may have steered it into plaintiff: defendant should have foreseen such an intervention. Oberg v. Berg, 1916, 90 Wash. 435, 156 P. 391, involved conflicting evidence as to whether boy meddled with car after it was parked on grade by operator who testified that he applied brakes and turned the wheel to curb. Held: issue for jury whether there was negligence which was proximate cause of injury to plaintiff. 1 Shearman & Redfield, Negligence, 5th Ed., sec. 59, was quoted with approval, as follows: 'When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.' (A later Washington case of contrary result is cited in appellants' brief, Joseph v. Schwartz, 128 Wash. 634, 224 P. 5, 6, in which the court was evidently influenced by the lapse of time, 'at least five or six hours', between the parking and the runaway. Moreover and more important, plaintiff's only effort to prove negligence was by the testimony of defendant who was called by plaintiff and made his witness.)

It is realized that the last quoted text is close to, if it does not embrace, the doctrine of res ipsa, which we do not accept; but it comports with our holding in ...